IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

UNITED STATES OF AMERICA :

:
v. : No. 1:08CR384-1
:
DEMARIO JAMES ATWATER :

MOTION TO DISMISS BECAUSE OF DISCRIMINATION IN THE DECISION OF

THE UNITED STATES ATTORNEY GENERAL TO AUTHORIZE THE UNITED STATES
ATTORNEY TO SEEK THE DEATH PENALTY AND FOR DISCOVERY OF
INFORMATION PERTAINING TO THE GOVERNMENT’S DECISION TO CHARGE THE
DEFENDANT AND PURSUE THE CASE CAPITALLY

DEMARIO JAMES ATWATER, by and through his undersigned legal

counsel, Assistant Federal Public Defender Gregory Davis and

Attorney Kimberly C. Stevens, does hereby move this Honorable Court

for an order dismissing this action because the decision of the

United States Attorney General to authorize the United States

Attorney for the Middle District of North Carolina to charge Mr.

Atwater and seek the death penalty was arbitrary and race-based, in

violation of the Fifth and Eighth Amendments to the United States

Constitution, and in the alternative to grant limited discovery

with respect to his claim of selective authorization. In support of

this motion, Mr. Atwater shows the following to the court:

INTRODUCTION

Defendant DeMario James Atwater, by and through his

undersigned counsel, contends that the United States Attorney

General acted with discrimination when he authorized local

Case 1:08-cr-00384-JAB Document 142 Filed 02/01/10 Page 1 of 59

prosecutors to seek the death penalty in this case. Specifically,

Defendant contends that the death penalty was authorized because he

is a black male accused of murdering a white female. As

demonstrated herein, Defendant has presented some evidence tending

to show that the Attorney General’s decision to authorize the death

penalty has a discriminatory effect and was made with a

discriminatory intent. See United States v. Armstrong, 517 U.S.

456, 468 (1996), United States v. Olvis, 97 F.3d 739, 743 (4th Cir.

1996). Defendant has presented relevant, credible statistical

evidence demonstrating that the Attorneys General under President

George W. Bush were far more likely to authorize the death penalty

in cases involving white, female victims as compared to all other

cases presented for review. Such findings constitute evidence of

both discriminatory effect and discriminatory intent.

Accordingly, Defendant’s motion for discovery in support of his

claim of selective authorization of the death penalty should be

granted.

ARGUMENT

Defendant’s claim – that the United States Attorney General

impermissibly authorized the death penalty in this case based on

Defendant’s race and gender as well as the race and gender of the

victim – is essentially a selective prosecution claim against the

United States Attorney General and the Department of Justice.

Defendant has also submitted a motion to dismiss and/or for

Case 1:08-cr-00384-JAB Document 142 Filed 02/01/10 Page 2 of 59

discovery on his claim of selective prosecution against the United

States Attorney for the Middle District of North Carolina (Doc.

141) which adopted and incorporated herein by reference; however,

different evidence will be presented in support of this motion and

therefore two separate motions have been filed.

In this motion and memorandum, Defendant will briefly outline

the Department of Justice’s death penalty authorization process,

reiterate the most relevant legal concepts for a selective

prosecution claim, and present evidence of both discriminatory

effect and intent.

A. THE UNITED STATES ATTORNEY GENERAL, AFTER CONSULTATION WITH

DEPARTMENT OF JUSTICE ATTORNEYS, MAKES THE FINAL DECISION
REGARDING WHETHER A CAPITAL SENTENCE SHOULD BE SOUGHT IN A
CASE.

Sections 9-10.010 et seq. of the United States Attorneys'

Manual sets out the Department of Justice (DOJ) protocol for

capital case review. “The protocol requires United States

Attorneys to submit cases involving a pending charge of an offense

for which the death penalty is a legally authorized sanction,

regardless of whether or not the U.S. Attorney recommends seeking

the death penalty.” U.S. Dep’t of Justice, The Federal Death

Penalty System: Supplementary Data, Analysis and Revised Protocols

for Capital Case Review (2001). After reviewing prosecution

memorandums, copies of indictments, written materials submitted by

defense counsel in opposition to the death penalty, and any other

significant documents and evidence, the Capital Case Unit of the

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Criminal Division drafts an initial analysis and proposed

recommendation. Id.

The case is then forwarded senior DOJ lawyers on the Attorney

General's capital case review committee. Id. “The review

committee meets with the Capital Case Unit attorneys, the U.S.

Attorney and/or the prosecutors in the U.S. Attorney's office who

are responsible for the case, and defense counsel. During this

meeting, defense counsel are afforded an opportunity to present any

arguments against seeking the death penalty for their client.”1

Id.

The review committee considers "all information presented to

it” and meets to finalize its recommendation to the Attorney

General. Id. The Attorney General receives all materials related

to the case, and makes a final decision as to whether a capital

sentence should be sought in the case. Id.

Counsel has also filed a motion to strike the authorization of

the death penalty in this case based on the fact that both of
Defendant’s counsel were not permitted to present oral arguments in
opposition to the death penalty authorization. (See Doc. 45.) The
DOJ Capital Case Review Committee met in this case on September 29,
2008 in Washington, D.C. The week before the meeting, lead counsel
Gregory Davis was seriously ill and hospitalized. Even though this
fact was conveyed to the United States Attorney’s Office and
counsel requested that the hearing be rescheduled, the hearing was
not rescheduled. Mr. Davis was unable to attend the hearing in
Washington, D.C. Consequently, Defendant’s attorneys were forced
to send co-counsel Kimberly Stevens to the hearing alone, despite
the fact that she had been appointed to represent Mr. Atwater only
six weeks before the hearing.

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B. THE ATTORNEY GENERAL’S DECISION TO AUTHORIZE THE DEATH PENALTY
MUST NOT VIOLATE EQUAL PROTECTION PRINCIPLES.

The United States Attorney General generally retains broad

discretion to enforce federal criminal laws; however, his or her

discretion is not unfettered, and prosecutorial decisions are

subject to constitutional constraints. See United States v.

Armstrong, 517 U.S. 456, 464 (1996); Wayte v. United States, 470

U.S. 598, 608 (1985). “One of these constraints, imposed by the

equal protection component of the Due Process Clause of the Fifth

Amendment, is that the decision . . . may not be based on ‘an

unjustifiable standard such as race, religion, or other arbitrary

classification.’”2 Armstrong, 517 U.S. at 464 (internal citations

omitted).

An allegation of discrimination against the Attorney General

is not a defense on the merits to the criminal charge itself, but

rather is an independent assertion that the Attorney General has

authorized the death penalty for unconstitutional reasons. See id.

at 463. As prosecutorial decisions are supported by a “presumption

of regularity,” a defendant has the burden of dispelling the

presumption that the Attorney General has not violated equal

The Fifth Amendment does not contain an equal protection clause,

but the Supreme Court has held that it nevertheless contains an
equal protection component. See Bolling v. Sharpe, 347 U.S. 497,
499 (1954). The Court has also indicated that their approach to
Fifth Amendment equal protection claims is “precisely the same as
to equal protection claims under the Fourteenth Amendment.” Wayte,
470 U.S. at 610 n.9 (quoting Weinberger v. Wiesenfeld, 420 U.S.
636, 638 n.2 (1975)).

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protection and, to prove the claim, must present clear evidence to

the contrary. Id. at 464-65.

A selective prosecution claim is judged according to ordinary

equal protection standards. Wayte, 470 U.S. at 608. Specifically,

in order to prove a selective prosecution claim on the merits,

“[t]he claimant must demonstrate that the federal prosecutorial

policy ‘had a discriminatory effect and that it was motivated by a

discriminatory purpose.’” Armstrong, 517 U.S. at 464 (quoting

Wayte, 470 U.S. at 608). To establish a discriminatory effect, the

claimant must show that the Attorney General did not authorize the

death penalty against similarly situated individuals of a different

race or whose victims were of a different race. 3

See id.

The discriminatory purpose element requires that the defendant

show that the prosecutorial decision was “invidious or in bad

faith.” See United States v. Olvis, 97 F.3d 739, 743 (4th Cir.

1996). This element “implies that the decisionmaker selected or

In McCleskey v. Kemp, 481 U.S. 279 (1987), the Supreme Court made
it clear that a defendant has standing to allege discrimination on
the basis of the victim’s race and/or gender. “It would violate
the Equal Protection Clause for a State to base enforcement of its
criminal laws on ‘an unjustifiable standard such as race, religion,
or other arbitrary classification.’” McCleskey, 481 U.S. at 292
(citations omitted); see also Belmontes v. Brown, 414 F.3d 1094,
1126 (9th Cir. 2005) (concluding that Armstrong did not overrule
this relevant portion of McCleskey and that accordingly, “a
defendant may bring a selective prosecution claim based solely on
the race of his victim, and that to establish a discriminatory
effect in a race-of-the-victim case, he must show that similarly
situated individuals whose victims were of a different race were
not prosecuted.”), rev’d on other grounds sub nom, Ayers v.
Belmontes, 549 U.S. 7 (2006).

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reaffirmed a particular course of action at least in part ‘because

of,’ not merely ‘in spite of,’ its adverse effects upon an

identifiable group.” Wayte, 470 U.S. at 610 (citing Pers. Admin.

of Mass. v. Feeney, 442 U.S. 256, 279 (1979)).

C. THE EVIDENTIARY STANDARD FOR DEFENDANTS SEEKING DISCOVERY IN

SUPPORT OF A SELECTIVE PROSECUTION CLAIM IS LESS STRINGENT
THAN THAT REQUIRED TO PROVE THE CLAIM ON THE MERITS.

As fully set forth in Defendant’s Motion and Memorandum in

Support of his claim of selective prosecution (Doc. 141), a

defendant seeking to obtain discovery in support of a selective

prosecution claim simply must show “some evidence tending to show

the existence of the essential elements of the defense,

discriminatory effect and discriminatory intent.” Armstrong, 517

U.S. at 468; see also United States v. Bass, 536 U.S. 862, 863

(2002). Although this standard is undoubtedly rigorous, it is

“less stringent” than that required to prove a selective

prosecution claim on the merits. See United States v. James, 257

F.3d 1173, 1178 (10th Cir. 2001). Federal courts have emphasized

that “the defendants need not establish a prima facie case of

selective prosecution to obtain discovery on these issues.” James,

257 F.3d at 1178 (emphasis added) (citing United States v. Jones,

159 F.3d 969, 978 (6th Cir. 1998); United States v. Bin Laden, 126

F. Supp. 2d 256, 262 & n.12 (S.D.N.Y. 2000); United States v.

Tuitt, 68 F. Supp. 2d 4, 14-15 (D. Mass. 1999)).

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D. DEFENDANT HAS DEMONSTRATED SOME EVIDENCE OF DISCRIMINATORY
EFFECT AND DISCRIMINATORY INTENT, AND THEREFORE DISCOVERY IN
SUPPORT OF HIS CLAIM SHOULD BE GRANTED.

Defendant does not contend that he has met the rigorous

standard required to prove his claim of selective death penalty

authorization at this stage of the proceedings, but “a defendant

need not prove his case in order to justify discovery on an issue.”

United States v. Jones, 159 F.3d 969, 978 (6th Cir. 1998). As

demonstrated below, Defendant can demonstrate “some evidence”

tending to show both discriminatory effect and discriminatory

intent on the part of the Attorney General and DOJ, and such

evidence is sufficient for this court to order discovery on his

claim of selective death penalty authorization.

In this case, Defendant bases his claim of selective

authorization on his own race and gender in combination with the

race and gender of the victim, Eve Marie Carson, a white female.

Below, Defendant presents statistical evidence demonstrating that

there is a relationship between the race and gender of victims and

defendants and Attorney General’s decision to authorize the death

penalty. These statistics constitute some evidence of both

discriminatory effect and discriminatory intent in this case.

1. Attorneys General under President George W. Bush were far

more likely to authorize the death penalty in cases involving
white, female victims than any other cases referred by federal
prosecutors.

Attached as Exhibit A is the declaration of Dr. Allan J.

Lichtman, a Professor of History at American University in

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Washington, D.C. and a scholar of quantitative methodology in

social science. Dr. Lichtman has worked as a consultant and expert

witness for both plaintiffs and defendants in more than seventy-

five voting and civil rights cases. (Lichtman Decl. ¶ 3.) The

United States Supreme Court authoritatively cited Dr. Lichtman’s

statistical work in a recent decision on congressional

redistricting in Texas. (Id.)

At the request of Defendant’s counsel, Dr. Lichtman has

examined whether a relationship exists between the race and gender

of victims and defendants and the decisions of Attorneys General to

authorize the death penalty. His examination covered the tenures

of the four Attorneys General under President George W. Bush: John

Ashcroft, Alberto Gonzales, Peter Keisler, and Michael Mukasey.

(Id. ¶ 1.) The Federal Death Penalty Resource Counsel Project

(FDFRC) provide the data used in his study, as they retain a

comprehensive list of all federal death penalty prosecutions and

information regarding each defendant. (Id. ¶ 4.) Their database

included 1120 cases presented to the Attorney general from 2001

through 2008. (Id. ¶ 5.) The database included the name of the

defendant, district and docket number, the race and sex of the

victims and the defendant, and the result of the death penalty

decision by the Attorney General or the jury. (Id.) Dr. Lichtman

used standard statistical methods to determine whether the results

of the inquiry were statistically significant. (Id.)

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 “The results of the analysis demonstrate that the Attorney

Generals during the administrations of George W. Bush were far more

likely to authorize the death penalty in cases involving white,

female victims as compared to all other cases presented for

review.” (Id. ¶ 6.) Specifically, in the seventy four cases

presented to the Attorney General with white female victims, the

death penalty was authorized forty times, for an authorization rate

of 54.1 percent of such cases. (Id.) However, in the other 1046

cases presented to the Attorney General in which the victim was not

a white female, the death penalty was authorized only 172 times, or

in 16.4 percent of such cases. (Id.) “Thus the rate at which the

death penalty was authorized for cases with white female victims

was more than three times greater than the raw for cases with all

other racial and gender combinations for victims.” (Id.)

Dr. Lichtman’s analysis also reveals that in cases with white

female victims, the death penalty is authorized the most when the

accused is a black male. (Id. ¶ 9.) The rate of death penalty

authorization is 60.6 percent for white female victims where the

defendant is a black male. (Id.) “This is well more than triple

the rate of 17.7 percent for cases in which there [sic] not a white

female victim and a black male defendant.” (Id.)

For purposes of comparison, the death penalty authorization

rate of 60.6 percent for cases with black male defendants and white

female victims is 24 percent higher than the rate of 48.8 percent

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for cases with white female victims, but no black male defendant.

(Id. ¶ 10.) The 60.6 rate is also nearly double the rate of 33.8

percent of cases with black male defendants and nonwhite female

victims, and more than double the rate of 29.5 percent for cases

with black male defendants and white male victims. (Id.) The 60.6

rate is more than triple the rate of 17.4 percent for cases with

black male defendants and nonwhite male victims, and is more than

four times the rate of 13.2 percent for cases with no black male

defendants and no white female victims. (Id.) The authorization

rate for the remaining category of cases with a black male

defendant and other victims is 4.8 percent. (Id.)

Since performing his original analysis, Dr. Lichtman has been

able to supplement the analysis by including the rates of

authorizations with younger defendants and younger victims, defined

as 30 years of age or younger. He found that the rates are even

higher. The Attorney General authorized capital prosecutions in

71.4 percent of cases with young Black male defendants and young

white female victims. In comparison, the authorization rate was

52.6 percent of cases which included either older Black male

defendants or older white female victims. The 71.4 percent

authorization for cases with young Black male defendants and young

white female victims also compares to an 18.3 percent authorization

rate for all other cases in the database of 1120 cases provided by

the Federal Death Penalty Resource Counsel Project (FDPRC). Dr.

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Lichtman indicates that despite the small numbers represented by the

71.4 percent authorization rate, a Fisher’s exact test for small

samples shows that the differences between these two rates of

authorization are statistically significant at p<.0001, which

corresponds to less than a one in ten thousand chance of obtaining

the results through chance or random effects. Dr. Lichtman concludes

that the Attorney General was nearly four times more likely to

authorize the death penalty in cases where the defendant was a young

Black male and the victim was a young white female than in other

cases presented during the period 2001 to 2008. A copy of his 2nd

Declaration is attached hereto as Exhibit B.

It is clear from these findings there are substantial and

statistically significant differences in the Attorney General’s

decision to authorize the death penalty depending on the race and

gender of the victims and defendants. “Cases with white female

victims are substantially more likely than cases with other

combinations of victims’ race and gender to be authorized for death

penalty prosecutions.” (Id. ¶ 11.) Furthermore, it is also

substantially more likely for a case with both black male

defendants and white female victims to be authorized for death

penalty prosecutions. (Id.)

Under the Bush II Administration, the Attorney Generals did

not seek the death penalty in a number of potential capital

prosecutions involving witness elimination or intimidation where

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the victim was a member of a minority group: United States v. Lash,

(E.D.LA No.03-CR-135); United States v. Mejia and Zuniga, (E.D.NY

No. S2:03CR00851-LDW); United States v. Yellowman, et al., (D.AZ

No. 03-CR-764); United States v. Walker, (S.D.MS 03-CR-30); United

States v. Sylvester, (D.LA No. 04-CR-094); United States v. Walker,

(N.D.MS 2:06-CR-00103-MPM-EMB); United States v. Collins, (S.D. MS

No. 3-06-CR-00024-HTWJCS); and United States v. Prilliman, (D.MD

No. RDB-06-0297). This was also true in other recent cases.

United States v. Jones, Munnings and Terlonge (S.D.FL No. 07-

205434-CR-Ungaro/O’Sullivan); United States v. Galindo, (S.D. TX

No. 7:07-CR-00231) and United States v. Stone and Dorsz, (D.MD No.

1:07-CR-00399-JFM).

Additionally, recent Attorney Generals have accepted guilty

pleas and agreed to life sentences in cases involving the murder of

cooperating individuals who were minority group members: United

States v. Satcher, (D. MD No. AW 00-CR-015); United States v.

Jones, et al., (E.D. MD No. 01- CR-80571); United States v.

Rodriquez, et al., (E.D. PA No. (98-CR-362) and United States v.

Cisneros, et al., (D. AZ No. 03-CR-730). Others who also killed

cooperating individuals who were members of minority groups where

allowed to plead guilty and avoid a death sentence before they were

“authorized” for a capital prosecution: United States v. Fatheree,

(E.D. LA No. 03-CR-135) and United States v. Winberry, (W. D. TN

No. 2:04-CR-20281-BBDDKV). The “Vineland Boys” (three defendants)

13

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were permitted to plead guilty and avoid a death sentence after the

Attorney General authorized a federal capital prosecution. The

multiple victims were Hispanic and included a police officer and a

16 year old girl. United States v. Covarrubius and Ledesma, (C.D.

CA No. 05-CR-578).

The Attorney General has also withdrawn a Notice of Intent

to Seek the Death Penalty without an offer to plead guilty or a

plea agreement in cases involving witness intimidation or

elimination where the victim was a member of a minority group:

(United States v. Foster, (D. MD No. 02-CR-410-ALL) and United

States v. Plunkett, (W.D. VA No. 4:04-CR-70083-JLK-ALL).

2. Dr. Lichtman’s significant statistical findings

constitute some evidence of both discriminatory purpose and
discriminatory effect.

Dr. Lichtman’s statistical findings demonstrate significant

differences in death penalty authorization decisions depending on

the race and gender of victims and defendants. These findings

constitute sufficient evidence of both discriminatory intent and

discriminatory effect for this court to order limited discovery

in this case.

First, the findings clearly demonstrate that the Attorney

General’s death penalty decisions have a discriminatory effect.

Dr. Lichtman’s declaration shows that the Attorney General is far

more likely to authorize the death penalty in cases where the

victim was white than in other referred cases where the victim

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was not white. These findings are specific to the Attorney

General’s death penalty authorization record and therefore can be

used to demonstrate discriminatory effect. See United States v.

Bass, 536 U.S. 862, 864 (2002) (suggesting that statistics

“regarding the record of the decisionmakers in the respondent’s

case,” as opposed to nationwide statistics, could be used to

demonstrate discriminatory effect); Belmontes v. Brown, 414 F.3d

1094, 1127 (9th Cir. 2005) (“Because Belmontes’ statistics

revealed that individuals whose victims were white were far more

likely to be charged with a capital offense than similarly

situated individuals whose victims were non-white, we conclude

that Belmontes established the requisite discriminatory

effect.”), rev’d on other grounds sub nom, Ayers v. Belmontes,

549 U.S. 7 (2006).

The defendant contends that ALL defendants charged federally

with a death eligible offense are similarly situated.

Dr. Lichtman’s statistical findings demonstrate such a clear

and significant relationship between the race and gender of

victims and defendants that it also constitutes evidence of

discriminatory purpose. As fully outlined in Defendant’s Motion

and Memorandum in Support of a Motion to Dismiss and/or Discovery

on Claim of Selective Prosecution (Doc. 141), there are

situations where the impact of a government action is so clearly

discriminatory that no other conclusion can be reached but that

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the action was taken for a discriminatory purpose. See Yick Wo

v. Hopkins, 118 U.S. 356, 373 (1886) (facts show prosecution

directed “so exclusively against a particular class of persons”

that it requires the conclusion that the law is being

administered unequally and therefore unconstitutionally);

Gomillion v. Lightfoot, 364 U.S. 339, 341 (1960) (where all but a

few of the 400 blacks of Tuskegee, Alabama were placed outside of

the city after redrawing of city boundaries, but where no whites

were displaced, the Court held that for all practical purposes

the legislature was solely concerned with segregating white and

black voters).

Although in McCleskey v. Kemp, 481 U.S. 279 (1987), the

Supreme Court concluded that discriminatory purpose cannot be

proven by system-wide statistical findings that suggest disparate

impact, Defendant is not precluded from offering relevant,

individualized statistics of disparate impact to demonstrate

discriminatory purpose. Unlike McCleskey, Defendant in this case

challenges the decision of a single entity — the United States

Attorney General — to authorize the death penalty in his case.

Accordingly, Defendant has presented highly relevant and

significant statistics that are directly related to the decision-

making entity, the Attorney General, as opposed to the broad and

system-wide findings that were presented in McCleskey. See also

Belmontes, 414 F.3d at 1127 (“We conclude that statistics

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relating to the charging entity, such as those presented by

Belemontes, are materially more probative of discrimination in

capital charging than those considered by the Supreme Court in

McCleskey” and therefore may be used to support a prima facie

showing of selective prosecution), rev’d on other grounds sub

nom, Ayers v. Belmontes, 549 U.S. 7 (2006).

State legislatures and prominent legal organizations have

begun to recognize that the considerable statistical evidence

demonstrating racial disparities in capital punishment cannot be

ignored. Specifically, in August 2009, North Carolina Governor

Beverly Purdue signed the Racial Justice Act into law, which

specifically allows pretrial defendants to present statistical

evidence that death sentences were sought or imposed

significantly more frequently upon persons of one race than upon

persons of another race. See N.C. Gen. Stat. § 15A-2011(b).

After the law passed, a major statewide study was launched to

examine race in capital cases in North Carolina since 1990. See

Mandy Locke, Race Law Lacks Traction, News & Observer (Raleigh),

Nov. 10, 2009.

In February 1990, the United States General Accounting

Office (GAO) completed a study death penalty patterns of racial

disparity. The study reviewed and synthesized 28 studies

previously conducted showing a pattern of evidence showing

racial disparities in the charging, sentencing and imposition of

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the death penalty after the Furman decision. In 82 percent of

the studies, race of the victim was found to influence the

likelihood of being charged with capital murder or receiving the

death penalty, i.e., those who murdered whites were more likely

to be sentenced to death than those who murdered blacks. A copy

of the study is attached hereto as Exhibit C.

The American Law Institute, an organization of over 4000

influential lawyers, judges, and law professors, have also been

influenced by the statistical evidence of race discrimination in

capital punishment. ALI voted in October 2009 to withdraw the

sections of the Model Penal Code concerning capital punishment

“in light of the current intractable institutional and structural

obstacles to ensuring a minimally adequate system for

administering capital punishment.” In making this decision, ALI

members relied on a report prepared concerning capital

punishment, which cited to the “robust relationship between the

race of the victim and the decision to seek and to obtain death

sentences . . . .” See Carol S. Steiker & Jordan M. Steiker,

Report to the ALI Concerning Capital Punishment,

www.ali.org/doc/Capital%20Punishment_web.pdf. This court must

recognize, as ALI has, that the statistical evidence of racial

discrimination in the decision of the Attorney General to seek

the death penalty is far too robust to be ignored.

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 Conclusion

Defendant has set forth sufficient evidence of both

discriminatory intent and discriminatory effect sufficient for the

court to order the death penalty be stricken as a possible penalty

in this action or in the alternative to at least order limited

discovery on a claim of selective death penalty authorization

against the United States Attorney General and the Department of

Justice.

For the reasons set forth herein, Defendant respectfully

requests that the court enter an order striking death as a possible

penalty in this action and/or in the alternative ordering the

United States Attorney General and the Department of Justice to

produce the following discovery to Mr. Atwater:

1. All correspondence (including e-mails and internal

memorandum regarding phone calls or verbal conversations) from the

United States Attorney’s Office regarding the decision to seek the

death penalty against Mr. Atwater, including but not limited to:

i. the “Death Penalty Prosecution Memorandum” as

described at § 73 of the Department of Justice Criminal Resource

Manual;

ii. the “Death Penalty Evaluation Form for

Homicides under Title 18” and all attached memoranda as described

at §74 of the Department of Justice Criminal Resource Manual;

iii. the “Non-decisional Case Identifying

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Information” form identifying the race of defendant and victims

as described at §74 of the Department of Justice Criminal

Resource Manual;

B. Captions and case numbers of all cases

submitted to the Capital Case Review Committee of the Department

of Justice in the United States between June 6, 2001 and the

present date, with a description of the offense(s) charged and

the ultimate disposition of the case and the race or ethnic

background of the defendants and victims;

C. All standards, policies, practices, or criteria

employed by the Department of Justice to guard against the

influence of racial, political, or other arbitrary or invidious

factors in the selection of cases and defendants for capital

prosecution;

D. For each of the cases identified in item (B)

above, the following information:

i. the “Death Penalty Prosecution Memorandum”

as described at § 73 of the Department of Justice Criminal

Resource Manual;

ii. the “Death Penalty Evaluation Form for

Homicides under Title 18” and all attached memoranda as described

at §74 of the Department of Justice Criminal Resource Manual;

iii. the “Non-decisional Case Identifying

Information” form identifying the race or ethnic background of

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defendants and victims as described at §74 of the Department of

Justice Criminal Resource Manual;

iv. The Presentence Investigation Report.

E. Any correspondence (including e-mails and

internal memorandum documenting phone calls or verbal

conversations) from the Department of Justice to United States

Attorneys and their respective staffs between June 6, 2001 and

the present regarding federal death penalty policies, procedures,

and selection criteria, or identifying cases to be considered for

capital prosecution under federal law;

F. All policies or practice manuals used by the

United States Attorney in the Middle District of North Carolina

regarding the factors used to determine whether to charge

defendants under state or federal law or whether or when to seek

the death penalty.

G. A list of all death-eligible indictments

originating in the Middle District of North Carolina since June

6, 2001, the race of the defendant, the race of the victim(s) and

the ultimate disposition of the cases.

H. A list of all non-negligent homicide cases in

the Middle District of North Carolina known to the Justice

Department or to the FBI in which one or more defendants was

arrested and charged by state or federal law enforcement

authorities, including all those in which the facts would have

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rendered the offenders eligible for the death penalty under

federal law.

I. All correspondence (including e-mails and

internal memorandum documenting phone calls or verbal

conversations), records of meetings, names of defendants

discussed, police reports, information contained in data bases

maintained by federal, state or local law enforcement agencies in

the Middle District of North Carolina related to programs

administered by or in cooperation with the United States

Attorney’s Office or the Department of Justice, i.e. Project Safe

Neighborhoods, ZAP, etc.

This the 1st day of February, 2010.

/s/ Gregory Davis

GREGORY DAVIS
Senior Litigator
N.C. State Bar No. 7083
251 N. Main Street, Suite 849
Winston-Salem, NC 27101
(336) 631-5278
E-mail: greg_davis@fd.org

/s/Kimberly C. Stevens
Kimberly C. Stevens
Attorney for Defendant
N.C. State Bar No. 20156
532 Ivy Glen Dr.
Winston-Salem, NC 27127
336-788-3779
Email: kimstevensnc@aol.com

COUNSEL FOR DEFENDANT

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 DEMARIO JAMES ATWATER

CERTIFICATE OF SERVICE

I hereby certify that on February 1, 2010, I electronically

filed the foregoing with the Clerk of the Court using the CM/ECF
system which will send notification of such filing to the
following:

Mr. Clifton T. Barrett

Ms. Sandra Hairston
Assistant United States Attorneys
P. O. Box 1858
Greensboro, NC 27402

Respectfully submitted,

/s/ Gregory Davis

GREGORY DAVIS
Senior Litigator
NC State Bar No. 7083
251 N. Main Street, Suite 849
Winston-Salem, NC 27101
(336) 631-5278
E-mail: greg_davis@fd.org

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